Background Reading on Umm Sayyaf’s Transfer to Kurdish Authorities

The Pentagon yesterday announced that it has transferred Umm Sayyaf, the US’s first detainee in the campaign against ISIL, to the Interior Ministry of Iraqi Kurdistan where she was being held.

While the move may set a precedent for how the US handles future detainees it captures in the campaign against ISIL, it raises significant concerns about potential for human rights violations by the Iraqi government given evidence that female prisoners in Iraqi prisons are routinely tortured and abused. Defense One’s Molly O’Toole quoted National Security Council spokesperson Alastair Baskey as saying “the Government of Iraq and Iraqi Kurdistan Regional authorities committed to treat her humanely and in accordance with Iraq’s domestic and international obligations.” Writing in Just Security last month about human rights concerns associated with such a transfer, Jonathan Horowitz argued that at a minimum, the US needed to:

Assess on a regular basis which, if any, safe and humane detention facilities it could transfer detainees to in Iraq. This should include an assessment of whether independent groups, lawyers, health professionals, and others have access to such facilities.

Assess the quality of laws, due process procedures, and trials to which transferred detainees may be subject to ensure they are not subjected to a flagrantly unfair trial.

Formally notify the ICRC when the United States is holding detainees and grant the ICRC full and unfettered access to Sayyaf and others.

Establish a mechanism that allows for an adequate and individualized examination of the detainee’s circumstances through a fair and transparent process before a competent, independent, and impartial decision-maker. This review mechanism must have the power to suspend a transfer to be blocked if there are credible non-refoulement concerns.

Conduct investigations into allegations that the principle of non-refoulement was violated, and provide adequate reparations when a violation is found.

There is also the option of “diplomatic assurances” — whereby the receiving State (i.e., Iraq) agrees with the sending State (i.e., U.S.) that it will not violate the rights of the transferred detainee. These assurances often include arrangements for the detainees to be monitored by the sending State or independent groups, but these assurances have come under heavy scrutiny for being a legally insufficient and/or ineffective safeguard to uphold the non-refoulement obligation.

Sayyaf was captured during a May raid inside Syria by US Delta Force commandos that also killed her husband, Abu Sayyaf, a senior ISIL financial operative. The Pentagon has since claimed that it suspected Umm Sayaf of having also played a significant role in planning ISIL activities. She was widely reported to have been interrogated for intelligence purposes during her captivity by the US. As Spencer Ackerman notes in The Guardian, it remains a bit unclear why the US chose to hand Sayyaf to Kurdish authorities instead of the central government. One wonders whether that decision was due, in part, to the State Department’s general view that human rights conditions for detainees in Kurdish facilities are a serious concern but even more so for detainees in facilities run by the central government. “Umm Sayyaf was located and held in Erbil,” Baskey told Defense One. “We work closely with the Kurdistan Regional Government authorities and for various reasons, including the location of potential witnesses, it made sense to transfer her to the custody of Iraqi authorities in Erbil.”

How much Sayyaf’s case is a precedent for turning over any future detainees to Iraqi or Kurdish authorities may be limited by the fact that she is reportedly an Iraqi national.

Click here for another piece by Horowitz on the rights afforded to Sayyaf by international law.